Citation Nr: 1021366
Decision Date: 06/09/10 Archive Date: 06/21/10
DOCKET NO. 08-36 360 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Whether new and material evidence has been submitted
sufficient to reopen a claim of entitlement to service
connection for a respiratory condition, claimed as
"shortness of breath", and, if so, whether service
connection is warranted.
2. Whether new and material evidence has been submitted
sufficient to reopen a claim of entitlement to service
connection for bilateral sensorineural hearing loss and, if
so, whether service connection is warranted.
3. Whether new and material evidence has been submitted
sufficient to reopen a claim of entitlement to service
connection for a nervous condition and, if so, whether
service connection is warranted.
4. Whether new and material evidence has been submitted
sufficient to reopen a claim of entitlement to service
connection for "bad feet" and, if so, whether service
connection is warranted.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. M. Marcus, Counsel
INTRODUCTION
The appellant served on active duty from September 1955 to
October 1957.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a July 2007 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Chicago,
Illinois. The Veteran had a hearing before the Board in
September 2009 and the transcript is of record.
The RO reopened the claims and denied them on the merits in a
November 2008 Statement of the Case (SOC). Regardless of the
RO's actions, the Board is required to consider whether new
and material evidence has been received warranting the
reopening of the previously denied claim. See Barnette v.
Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi,
265 F.3d 1366 (Fed. Cir. 2001); see also Wakeford v. Brown,
8 Vet. App. 237 (1995) (VA failed to comply with its own
regulations by ignoring issue of whether any new and material
evidence had been submitted to reopen the veteran's
previously and finally denied claims). Thus, the issue on
appeal has been characterized as shown above.
In September 2009, the Veteran submitted additional evidence
and submitted a waiver of RO consideration. Thus, the Board
will consider this evidence in the first instance in the
following decision.
FINDINGS OF FACT
1. The RO first denied service connection for shortness of
breath, hearing loss, a nervous condition and bad feet in a
February 2003 rating decision; the Board also denied the
claims in a February 2005 decision and this decision was
affirmed by a June 2006 Court of Appeals for Veterans' Claims
(CAVC) decision. The Veteran did not appeal the claims
beyond the CAVC making the February 2005 Board decision
final.
2. Evidence received since February 2005 does not raise a
reasonable possibility of substantiating any of the claims of
service connection.
CONCLUSIONS OF LAW
1. The February 2005 Board decision that denied the claims
for entitlement to service connection for shortness of
breath, hearing loss, a nervous condition and bad feet is
final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100
(2009).
2. Evidence received since the February 2005 decision is not
new and material and, therefore, the claims may not be
reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§
3.156; 20.1100 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has thoroughly reviewed all the evidence in the
Veteran's claims folder. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
extensive evidence submitted by the Veteran or on his behalf.
See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)
(the Board must review the entire record, but does not have
to discuss each piece of evidence). The analysis below
focuses on the most salient and relevant evidence and on what
this evidence shows, or fails to show, on the claim. The
Veteran must not assume that the Board has overlooked pieces
of evidence that are not explicitly discussed herein. See
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law
requires only that the Board address its reasons for
rejecting evidence favorable to the veteran).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA describes VA's duties to notify and assist claimants
in substantiating a claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a).
The notice requirements were met in this case by a letter
sent to the Veteran in November 2006. That letter advised
the Veteran of the information necessary to substantiate his
claims, and of his and VA's respective obligations for
obtaining specified different types of evidence. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R.
§ 3.159(b). The letter also explained how disability
ratings and effective dates are determined. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The letter also satisfies the extra duty to notify provisions
for claims to reopen a previously denied claim, such as the
issues here. VA must notify a claimant of the evidence and
information that is necessary to reopen his or her claim and
VA must notify the claimant of the evidence and information
that is necessary to establish his or her entitlement to the
underlying claim for the benefit sought by the claimant.
Kent v. Nicholson, 20 Vet. App. 1 (2006). The November 2006
letter informed the Veteran new and material evidence was
needed to reopen the claim and provided him the definition of
new and material evidence. The letter also informed him that
the claims were previously denied because there was no
medical evidence of current diagnoses linked to any incident
of his active military service. The Veteran was advised that
he must submit evidence related to this fact.
The Veteran has not alleged that VA failed to comply with the
notice requirements of the VCAA, and he was afforded a
meaningful opportunity to participate effectively in the
processing of his claims, and has in fact provided additional
arguments at every stage. See Mayfield v. Nicholson, 19 Vet.
App. 103 (2005).
The notice required by 38 U.S.C.A. § 5103(a) should be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also
Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was
done in this case.
The Board also concludes VA's duty to assist has been
satisfied. The Veteran's service treatment records are
regrettably unavailable due to a fire related incident.
Efforts to rebuild the file from other sources were
unsuccessful, but the Board concludes the efforts have been
exhausted and any further efforts would be fruitless. VA
medical records are in the file. The Veteran has at no time
referenced outstanding records that he wanted VA to obtain or
that he felt were relevant to the claims.
The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such is
necessary to make a decision on the claim, as defined by law.
With regard to service connection claims, the Court held in
the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006),
that an examination is required when (1) there is evidence of
a current disability, (2) evidence establishing an "in-
service event, injury or disease," or a disease manifested in
accordance with presumptive service connection regulations
occurred which would support incurrence or aggravation, (3)
an indication that the current disability may be related to
the in-service event, and (4) insufficient evidence to decide
the case. This duty to provide an examination, however, does
not attach to petitions to reopen claims of service
connection.
Nevertheless, the Veteran was afforded medical examinations
to obtain opinions with regard to whether the Veteran had
current diagnoses related to his complaints of shortness of
breath, hearing loss, nervous condition and bad feet related
to his active military service. Cf. Duenas v. Principi, 18
Vet. App. 512, 517 (2004). Further examination is not needed
because, at a minimum, there is no persuasive and competent
evidence that the claimed conditions may be associated with
the Veteran's military service. The Board notes that it is
not required to reopen the Veteran's claim solely because he
was afforded a VA examination. Woehlaert v. Nicholson, 21
Vet. App. 456, 464 (2007). Indeed, as under the
circumstances of this case, when the Board determines that
reopening a claim is not warranted, the adequacy of any
examination provided is moot. See id. (specifically
distinguishing such circumstances from that which were
present under Barr v. Nicholson, 21 Vet. App. 303, 311
(2007)). There also is no indication from the new VA
examination reports that his claimed disabilities are related
to his service. As the new evidence does not address the
elements that were found insufficient in the previous denial
of the Veteran's claims, the Board finds that it does not
raise a reasonable possibility of substantiating the
Veteran's claims.
Thus, the Board finds that VA has satisfied the duty to
assist the Veteran. In the circumstances of this case,
additional efforts to assist or notify him in accordance with
the VCAA would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands which would only result
in unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided). VA has
satisfied its duties to inform and assist the Veteran at
every stage of this case. Therefore, the Board may proceed
to consider the merits of the claims.
New and Material Evidence
Service connection means that the facts establish that a
particular injury or disease resulting in disability was
incurred in the line of duty in the active military service
or, if pre-existing such service, was aggravated during
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). This may
be shown by affirmative evidence showing inception or
aggravation during service or through statutory presumptions.
Id. When a disease is first diagnosed after service, service
connection can still be granted for that condition if the
evidence shows it was incurred in service. 38 C.F.R.
§ 3.303(d).
The Veteran first initiated his claim for service connection
for a respiratory condition (claimed as "shortness of
breath"), hearing loss, a nervous condition and bad feet in
August 2002. The issues were ultimately appealed to the
Board, which denied the claims in a February 2005 decision
finding no current diagnoses related to any incident of his
active military service. The Board's denial was confirmed by
the Court of Appeals for Veterans' Claims (CAVC) in June
2006.
The Board finds noteworthy, as discussed in the February 2005
Board decision, that the only period of active military
service confirmed in the record is the Veteran's service in
the Army from September 1955 to October 1957. The Veteran
claimed these various conditions mainly related to his
service in the Merchant Marines from 1979 to sometime in the
1990s. Under the law, however, Merchant Marine service does
not constitute active duty unless it includes oceangoing
service performed between December 7, 1941 and August 15,
1945 or, alternatively, if the Merchant Seaman served aboard
"Blockship" in support of "Operation Mulberry". See 38
C.F.R. §§ 3.7(x)(14)-(15). In this case, the Veteran did not
serve in the Merchant Marines until 1979 and there is no
evidence the Veteran served in support of "Operation
Mulberry" and, therefore, the Veteran's Merchant Marine
service may not support a claim of entitlement to service
connection. Id.
Unless the Chairman of the Board orders reconsideration, all
Board decisions are final on the date stamped on the face of
the decision. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1100(a).
The Veteran was notified of his appellate rights at the time
of the Board decision, appealed the claims to the CAVC and
the CAVC thereafter affirmed the Board's decision in June
2006. Therefore, the February 2005 Board decision is final.
At the time of the February 2005 decision, the record
included service medical records from 2002, to include a VA
psychiatric examination finding no evidence of a psychotic,
anxiety or mood disorder and treatment for foot pain with
diagnoses of onychauxis and pes planus, bilaterally. No
medical records indicated diagnoses of any current
respiratory disease, hearing loss, psychiatric condition or
foot condition related to military service.
Potentially relevant evidence received since the February
2005 decision includes: (1) VA outpatient treatment records
through May 2009; and (2) and VA general medical,
psychiatric, audio, respiratory and feet examinations dated
May 2007.
Except as provided in Section 5108 of this title, when the
Board disallows a claim, the claim may not thereafter be
reopened and allowed and a claim based on the same factual
basis may not be considered. 38 U.S.C.A. § 7104.
Under 38 U.S.C.A. § 5108, "[i]f new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the Secretary shall reopen the claim and review
the former disposition of the claim." 38 C.F.R. § 3.156(a),
which defines "new and material evidence," was revised,
effective August 29, 2001. The instant claim to reopen was
filed after that date, and the revised definition applies.
Under the revised definition, "new evidence" means evidence
not previously submitted to agency decision makers, and
"material evidence" means existing evidence that, by itself
or when considered with previous evidence of record, relates
to an unestablished fact necessary to substantiate the claim.
The new and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim.
When determining whether the claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992).
The Veteran claims his respiratory disease is a product of
inhaling asbestos working ships. He concedes he smoked
cigarettes since the age of 17, but also testified he was
exposed to chemicals, significantly asbestos, since 1955
working on various ships in Alaska where his MOS primarily
required him to load and unload Navy ships. With regard to
hearing loss, the Veteran indicates working in engine rooms
and boot camp in general exposed him to loud noises. He
alleges he injured his feet in the 1990s in the Merchant
Marines when steel fell on his feet. He thought the steel
cut of his legs, which he claims caused significant emotional
stress ultimately leading to his nervous condition. He
further contends that the overall stress of being in the
military contributed to his current psychiatric disability.
Again, the Board denied these claims finding the Veteran did
not have current diagnoses related to his active military
service in the Army. Accordingly, for evidence to be new and
material in this matter, it would have to tend to show that
the Veteran has current diagnoses related specifically to his
active military service in the Army. No competent evidence
received since the February 2005 Board decision tends to do
so.
With regard to the Veteran's psychiatric claim, the VA
outpatient treatment records reveal diagnoses of adjustment
disorder with anxiety and depression, cognitive disorder,
alcohol abuse, agoraphobia, dementia, schizotypal personality
disorder, and adult antisocial disorder. The VA outpatient
treatment records do not find objective evidence supporting a
diagnosis of PTSD and, moreover, associate the various
diagnoses with factors unrelated to his military service, to
include alcohol abuse. The Veteran was afforded a VA
examination in May 2007 where the examiner found no emotional
disorders, but rather suspected possible cognitive and
dementia impairment. The Board further notes the Veteran,
during his hearing before the Board, could not specifically
identify a particular incident during his Army service
responsible for any psychiatric condition. Rather, the
Veteran described a foot injury occurring during his time in
the Merchant Marines.
With regard to the Veteran's respiratory disease, VA
outpatient treatment records are silent as to any on-going
treatment for a respiratory condition. The Veteran conceded
during his hearing before the Board, that he has never been
specifically diagnosed with asbestos-related respiratory
disease. The Veteran further testified that he smokes one
pack of cigarettes a day and has done so since he was 17
years old. The Veteran was afforded a VA examination in May
2007 where the examiner found objective evidence of very mild
chronic obstructive pulmonary disease (COPD) "not related to
service," but rather "more likely than not secondary to
smoking."
With regard to the Veteran's hearing loss claim, the Veteran
testified that his main source of noise exposure was in the
Merchant Marines where he worked in loud engine rooms for
decades, twenty years after separation from the military.
The Veteran was afforded a VA audiological examination in May
2007 where the examiner diagnosed the Veteran with bilateral
sensorineural hearing loss more likely related to his
occupational noise exposure in the Merchant Marines.
With regard to the Veteran's feet claim, the VA outpatient
treatment records reveal periodic podiatry treatment for
bunions, halux valgus and pes planus. The Veteran was
afforded a VA examination in May 2007 where he was diagnosed
with osteotomy of the right great toe with possible hammer
toes, hallux valgus deformity, pes planus and degenerative
joint disease of the feet. The examiner did not render an
opinion with regard to etiology, but the Board notes no
medical evidence is currently of record linking any foot
diagnosis with the Veteran's active military service. The
Board further notes that the Veteran has not identified any
service related incident from his Army service responsible
for his bilateral foot conditions. Rather, the Veteran
testified as to a foot injury occurring during his time in
the Merchant Marines.
The new evidence does indicate current diagnoses of COPD,
hearing loss, dementia, and various bilateral foot
conditions, but none of the medical evidence indicates any of
these diagnoses are related to the Veteran's service in the
Army. Indeed, the evidence is to the contrary. The Veteran
himself, during his hearing before the Board, emphasized
events occurring during his time with the Merchant Marines,
to include asbestos exposure, noise exposure and a foot
injury.
The additional evidence does not raise a reasonable
possibility of substantiating the claim because none of the
evidence links any current diagnosis with any remote incident
of the Veteran's active military service. Indeed, the
majority of the new evidence cuts against the Veteran's
claims. Further, the nature of the Veteran's service (which
has remained unchanged) is the determinative factor in this
case, and prevents the award of VA benefits.
As to the Veteran's own statements, he has not demonstrated
he has medical training, expertise, or credentials that would
qualify him to render a competent opinion regarding medical
causation. His lay opinion that his disabilities are related
to his Army service is not competent evidence, and cannot be
deemed "material" for purposes of reopening the Veteran's
claims. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992). Where, as here, the determinative issue is one of
medical diagnosis or causation, competent medical evidence is
required. Lay assertions are insufficient to reopen a claim
under 38 U.S.C. § 5108. Moray v. Brown, 5 Vet. App. 211, 214
(1993).
No competent evidence received since February 2005 relates to
the unestablished facts necessary to substantiate the claims.
The circumstances of this case are similar to those
referenced in Paller v. Principi, 3 Vet. App. 535 (1992). The
point has been reached in this case "where it can be said
that, all things being equal, the evidence being proffered
has been fairly considered and that further rearticulation of
already corroborated evidence is, indeed, cumulative."
Paller, 3 Vet. App. at 538. The Board has previously
considered the Veteran's testimony and medical evidence
indicating current treatment and denied this claim.
Accordingly, the additional evidence received is not new and
material and the claims may not be reopened. Until the
Veteran meets his threshold burden of submitting new and
material evidence sufficient to reopen his claim, the benefit
of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet.
App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet.
App. 49, 55 (1990).
ORDER
New and material evidence sufficient to reopen a claim of
entitlement to service connection for a respiratory
condition, claimed as "shortness of breath", has not been
submitted and, therefore, the claim may not be reopened.
New and material evidence sufficient to reopen a claim of
entitlement to service connection for bilateral sensorineural
hearing loss has not been submitted and, therefore, the claim
may not be reopened.
New and material evidence sufficient to reopen a claim of
entitlement to service connection for a nervous condition has
not been submitted and, therefore, the claim may not be
reopened.
New and material evidence sufficient to reopen a claim of
entitlement to service connection for "bad feet" has not
been submitted and, therefore, the claim may not be reopened.
____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs